A Quest for Fair and Balanced: The Supreme Court, State Courts, and the Future of Same-Sex Marriage Review after Perry

Anderson, Chase D., Duke Law Journal

ABSTRACT

Gay rights advocates and social conservatives alike have criticized the Supreme Court for its recent decisions concerning sexual orientation. An examination of those decisions reveals that, taken together, they represent a surprisingly careful balance. The result is a principle of neutrality in which the Court has effectively demanded that states refrain from taking either side in the culture war surrounding sexual orientation. The true test of that neutrality principle will arise when the Court considers the constitutionality of a same-sex marriage ban. Thus far, challenges have taken place in state courts under state constitutions; those judges appear to have been guided by their own assumptions and values rather than the Supreme Court's balanced approach. The federal challenge in Perry v. Schwarzenegger may change the legal landscape. The district court ordered a full trial--the first court to do so--and held, based on the evidence, that the state constitutional amendment violated the U.S. Constitution because it served only to disapprove of gay persons and their relationships. This August 2010 decision provides an excellent application of the Supreme Court's state-neutrality principle and will offer the Court the chance to weigh in on same-sex marriage.

Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate[,]... black and white. But that sort of stereotyped reaction may have no rational relationship--other than pure prejudicial discrimination--to the stated purpose for which the classification is being made.

--Justice John Paul Stevens (1)

INTRODUCTION

Gay rights advocates and social conservatives alike have criticized the Supreme Court for being too sympathetic to the other side in its recent decisions concerning sexual orientation. According to two prominent gay rights advocates, the Court is not "leap[ing] to defend full constitutional equality of gay people." (2) Vocal conservative Justice Scalia, meanwhile, maintains that the Court "has largely signed on to the so-called homosexual agenda." (3) Examining recent Court decisions, both sides appear to be right, to some extent. How is this possible? This Note examines these decisions and finds that although the Court must decide "for or against" gay rights in individual cases, its overall body of decisions represents a surprisingly careful balance. That balance is enabled by a nod to each side. Under one line of cases, employing a "more searching form of rational basis review," (4) the Court has effectively prohibited the state from disapproving of gay persons through its official acts. (5) Under another line of cases, using established First Amendment doctrine, the Court has struck down antidiscrimination protections for gay persons when those protections intrude on private groups' rights to disapprove of or exclude others. (6) The result is a principle of neutrality; that is, with the convergence of both lines, the Court effectively has demanded that the state refrain from taking either side in the culture war (7) surrounding sexual orientation.

The true test of the neutrality principle will arise if--or, more likely, when--the Supreme Court considers the constitutionality of a ban on same-sex marriage. The Court has not considered a gay marriage ban since 1972, when it dismissed Baker v. Nelsons (8) "for want of substantial federal question." (9) As one court aptly noted decades later, however, "Doctrinal developments show it is not reasonable to conclude [that] the questions presented in the Baker jurisdictional statement would still be viewed by the Supreme Court as 'unsubstantial.'" (10) Nevertheless, most challenges to marriage bans have taken place in the state courts, under state constitutions. The balance that has guided the Supreme Court has not heavily influenced state courts deciding same-sex marriage cases. …

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